Disciplinary Proceedings, Death of Employee and Pensionary Benefits

Mr. Justice Faisal Zaman Khan in his judgment has decided the issue regarding disciplinary proceedings, death of employee and pensionary benefits in Writ Petition No. 16949 of 2014.

1. Through this petition order dated 30.05.2014 passed by respondent No.2 (Impugned order) has been assailed, by virtue of which petitioner has been deprived of service benefits of her deceased husband.

2. Succinctly, the facts of the case are that the husband of the petitioner (Israr Ahmad Khan) while working as Senior Commercial Assistant (Parcel), Railway Station, Lahore was issued a show cause notice under the Removal from Service (Special Powers) Ordinance, 2000 (Ordinance) on 01.02.2002; vide order dated 21.08.2002 major penalty of dismissal from service was imposed upon him w.e.f. 06.08.2002. Subsequent thereto, petitioner moved an application before respondent No.2 for grant of service benefits of her husband on the ground that her husband expired on 20.08.2002, whereas, the penalty was foisted on him on 21.08.2002 i.e. one day after his death, therefore, the said order was not sustainable and she cannot be deprived of the service benefits of her deceased husband. Since, the application of the petitioner was kept pending, she filed W.P.No.10406/2014, in which on 17.04.2014 a direction was issued to respondent No.2 to decide the same, whereupon impugned order was passed through which claim of the petitioner was declined, hence, this petition.

3. Learned counsel for the petitioner submits that since the order of imposition of major penalty was passed against the husband of the petitioner that too after his death, therefore, disciplinary proceedings initiated against him stood abated and in the attending circumstances, petitioner is entitled to service benefits of her husband.

4. Conversely, learned counsel for respondents submits that since the deceased was involved in embezzlement, whereupon, disciplinary proceedings were initiated against him and he was awarded major penalty that too retrospectively (from 06.08.2002), therefore, petitioner is not entitled to receive any benefits. Further submits that if the petitioner has any grievance, she can approach the civil court of competent jurisdiction for the redressal of the same.

5. Arguments heard. Record perused.

6. The all-important question which requires determination by this Court is whether with the death of an employee/civil servant, prior to culmination of disciplinary proceedings, the said proceedings stood abated or else penalty could be imposed on him posthumously.

7. While discussing an identical proposition Jharkhand High Court in case titled Jayanti Devi v. State of Behar and Ors. reported as (2001 (49) BLJR 2179) has held as follows:

“8 It is well settled that a departmental proceeding can be initiated against the government servant for the purpose of imposing penalty if misconduct is established. The imposition of penalty like dismissal or removal has nexus to the contract of service. The proceeding therefore automatically lapse or terminated by reason of death of delinquent employee unless otherwise it is continued in accordance with rules.

A Division Bench of the Bombay High Court in the case of Hirabai Deshmukh and Anr. v. State of Maharashtra reported as (1986 Lab IC 248) has held as follows:

“The provisions with regard to dismissal, removal and suspension of the civil servant do not permit holding of any further enquiry into the conduct of such a civil servant after his death. Such proceedings are intended to impose departmental penalty and would abate by reason of the death of civil servant. The purpose of proceedings is to impose penalty, if misconduct is established against the civil servant. That can only be achieved if the civil servant continues to be in service. Upon broader view the proceedings are quasi-criminal in the sense it can result in fault finding and further imposition of penalty. The character of such proceedings has to be treated as quasi-judicial for this purpose. In the light of the character of proceedings and the nature of penalty like dismissal or removal, or any other penalties, minor or major, it has nexus to the contract of service. Therefore, if the person who has undertaken that contract is not available, it should follow that no proceedings can continue. Thus when the proceedings are quite personal in relation to such a contract of service, the same should terminate upon death of the delinquent. By reason of death, such proceedings would terminate and abate. We think that such a result is also inferable from the provisions of Rule 152-B of the Bombay Civil Services Rules.”

In the case of M. Mayakal v. District Forest Officer, Mudurai division, Mudurai (Madras) reported as (2010(2) SLR 275:2009 LIC 802), Madras High Court has held as follows:

“22. Going by the sequence of events and having regard to the fact that there is an omission on the part of the respondent in considering the further representation of the deceased Government servant, the possibility of an order being written by the disciplinary authority on coming to know the death of the husband of the petitioner on 31st May, 1995 and retaining the same in the file cannot be ruled out. Therefore, the impugned order of removal cannot be said to have come into force, without due and proper communication to the Government servant. Therefore, the disciplinary proceedings initiated against the petitioner’s husband cannot be said to have reached its finality and consequently, it would stand abated consequent to the death of the Government servant.”

In the case of Manoj Kumar v. Central Coal Field Limited Ranchi etc. Jharkhand High Court at Ranchi in W.P. (S) 2991 of 2014 has held as follows:

“11. In view of the aforesaid legal position, I have no hesitation in holding that after the death of the petitioner’s father on 16.08.2013, the departmental proceeding initiated against him has automatically terminated and/or abated, in that circumstance, any subsequent action of the Inquiry Officer or Disciplinary Officer in the said proceeding is illegal and non-est in the eye of law. I further hold that since on the date of the death of the petitioner’s father no punishment awarded against him, therefore, it would be deemed that he died in harness. Consequently, his dependents including the petitioner are entitled to get all the benefit available under Rule of the company and the company is liable to give such benefit to the petitioner, including the appointment as per Clause 9.3 of the National Coal Wage Agreement (N.C.W.A.).”

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